Hooper Law Office,LLC Estate Planning Blog

Monday, January 28, 2013

We searched everywhere but can’t find my Mom’s Will. Now what do we do?


If your Mom’s will cannot be found after a reasonably diligent search she will be considered to have died intestate. The first step is for someone (usually one or more of the children) to commence a probate for your Mom and ask to be appointed as Personal Representative. All of your Mom’s heirs at law will be notified about this. Unless someone objects, the petitioner is usually appointed. From this point on it operates just like a probate where there is a Will. Administrative expenses need to be paid and the creditors need to be notified.

Unlike with a will, where there can be many interesting and unique patterns, with an intestate administration the heirs and the amount they each get will be determined by statute. If there is a surviving spouse and all of the children are with that spouse, he or she will get everything. If there is no surviving spouse, the children will inherit equally. What gets very complicated is second marriage situations where each spouse has children. If this is your situation you are well advised to retain an experienced estate planning attorney.

Friday, January 25, 2013

Can I still act as my dad’s Power of Attorney after he died?


No. Once your dad has passed away, any powers you were granted as the agent have terminated. If immediate action needs to be taken, such as paying a funeral bill or accessing a safe deposit box that contains a Will, an heir can petition the court for a special administrator to be appointed. The court will grant the Special Administrator very specific functions rather than the wide range you have as personal representative. On the other hand, if the decedent had a trust, all assets in the trust can be accessed immediately by the successor trustee.

Friday, January 11, 2013

My husband just died and the bank is asking for a death certificate. How do I get one?


Funeral homes are extremely helpful after the death of a loved one. Among the services they provide are notifying Social Security and ordering death certificates. It normally takes between two weeks to receive the certificates. Your only decision is how many copies of the death certificate to get. Extra copies only cost a few dollars if added to the original order, but if you run out and need to re-order it is much more expensive and time consuming. Plan on a copy for each bank, financial institution, insurance company, and for each county in which you own real estate. Even then you will not have enough because of the savings bonds in the safe deposit box or the insurance that came with the credit card. The point is, at this difficult time in your life you shouldn’t be stressing over the number of certificates. Get more than you think you need. For most estates a practical minimum is twelve certificates and twenty is probably a better idea. 

Tuesday, January 8, 2013

My sister died shortly after her divorce. She never removed her husband as the beneficiary on her IRA and life insurance but in her will she gives everything to her kids. Who do I give her money to?


Unfortunately, her ex-husband will receive a windfall. Even if she expressly states that she wants her kids to inherit those items, the beneficiary designations will control and those items will pass automatically to him.

Wednesday, January 2, 2013

My mom just died leaving me in charge of her estate. I have no idea what assets she had so where do I start?


Look through financial records, account statements, deeds, any evidence of debts owed to her and last year’s taxes to get a basic idea of what assets she held at the time of her death. Additionally, her trusted financial advisor can be invaluable at this time. The person has in-depth knowledge of her assets and he or she can provide counsel regarding your various payment, withdrawal, tax, and investment options.

Monday, December 17, 2012

My spouse died, is there anything that I need to do with our property?


All the property in which the deceased spouse (or their trust) had an ownership interest should be identified. Married couples frequently hold property as joint tenants meaning that upon the first person’s death the property automatically passes to the surviving spouse. However, it is important to verify ownership, identify which assets may be subject to probate, and remove the deceased spouse that has beneficiary designations such as life insurance or retirement accounts will require paperwork and a death certificate to release the funds. If estate taxes may be an issue it is crucial that you immediately confer with an estate planning attorney to discuss your options. Additionally, you should update your disability documents including any powers of attorney and your revocable living trust or will. 

Monday, December 10, 2012

There is an urgent matter that needs to be dealt with. Is there a process available to take care of it?


You could petition the court to be appointed as a special administrator; however, your powers will be limited to those expressly granted by the court. This may be appropriate when something needs to be done quickly but the personal representative has not yet been appointed. 

Friday, December 7, 2012

My mother just died. Can I take care of her final affairs right away?


The person listed in your mother’s planning documents will be in charge of her estate. The person often identified as the trustee or successor trustee of a trust or nominated as the executor or personal representative in a will. If no estate planning documents can be found, someone must petition the court to be put in charge. Some actions can be taken immediately (funeral arrangements, acquiring death certificates, freezing any line of credit) whereas most other actions should be handled only after contacting the probate attorney. It is crucial that you do not begin paying debts or transferring funds until after you determine the value of her estate.

Monday, December 3, 2012

What is an Irrevocable Life Insurance Trust?


An Irrevocable Life Insurance Trust (ILIT) is a trust created for the benefit of someone other than the Trustmaker that removes life insurance proceeds from the insured’s estate and provides a vehicle with which to direct the proceeds of the policy.  One significant benefit of an ILIT is that it passes the insurance proceeds estate tax-free to the beneficiaries.  There are rules regarding selection of the trustee and careful consideration should be given as to which policies should be transferred to or purchased by the trust.  

Wednesday, November 28, 2012

Divestment Strategies and Long Term Care


Preserving assets through divestment is a poorly understood area of law.  Often we are asked about how the annual gift tax exclusion (currently $13,000) relates to long term care planning.  In short, it really doesn’t.  The annual gift tax exclusion does not reduce the Medicaid penalty period for asset transfers that occurred within five years of receiving long term care benefits.  In Wisconsin, nearly any transfer of income, non-exempt assets, and homestead property for less than fair market value is considered a divestment.  However, there are strategies available for preserving the maximum amount of assets and incurring the minimum penalty.  

Tuesday, November 20, 2012

What is HIPAA?


The Health Insurance Portability and Accountability Act (HIPAA) was passed about fifteen years ago to ensure that people’s health care information remains private.  It prevents health care providers from releasing your private information to unauthorized individuals. However, one unfortunate consequence of this law is that oftentimes loved ones are unable to obtain necessary information when an emergency arises.  A proper estate plan will incorporate a HIPAA-compliant release of information that allows key individuals to speak with health care providers.  There are no requirements regarding who can be named in an authorization and that decision should be made according to your individual circumstances.    

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